FRED CASH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Fred Cash appealed an adverse order in a collateral attack on his criminal conviction under Florida Criminal Procedure Rule No. 1, alleging that a police officer committed perjury known to prosecuting officials. The appellate court affirmed the trial judge's rejection of the petition, finding no substantial evidence of perjury and no evidence that prosecutors were aware of any false testimony.
The trial judge's rejection of the petition was affirmed. The court found that the trial judge's conclusion that no perjured testimony existed was amply supported by the record, and that even if perjury had occurred, there was no evidence that prosecuting officials were aware of it, which would be necessary for relief.
“It is incumbent upon the appellant to make error appear.”
Establishes the burden of proof standard in collateral attack proceedings under Criminal Procedure Rule No. 1.
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Join FLexlaw to unlock all legal intelligenceCash filed a collateral attack on his verdict, judgment, and sentence, alleging that a police officer testified falsely at trial and that prosecuting …
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This appeal seeks review of an adverse order in a proceeding under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. The thrust of the amended petition collaterally attacking the verdict, judgment and sentence under review, is alleged perjury by a police officer which was known by the prosecuting officials. We find no error and affirm.
This procedure partakes of a civil remedy. State v. Weeks, Fla. 1964, 166 So.2d 892; Barton v. State, Fla.App.1965, 176 So.2d 597; Whitney v. State, Fla.App.1966, 184 So.2d 207; Bryant v. State, Fla.App.1967, 204 So.2d 9. It is incumbent upon the appellant to make error appear. Coleman v. State, Fla.App.1967, 193 So.2d 699; Plymale v. State, Fla.App. 1967, 201 So.2d 85; Bryant v. State, supra. Unless there is no substantial evidence to support his conclusions, the trial judge will be affirmed. Swarthout v. State, Fla.App.1964, 165 So.2d 773; Carroll v. State, Fla.App.1966, 186 So.2d 834. The trial judge failed to find that perjured testimony was involved. A review of the record reveals *19that this conclusion is amply supported. Hall v. State, 136 Fla. 644, 187 So. 392; Gordon v. State, Fla.1958, 104 So.2d 524; Duval v. State, Fla.App.1958, 104 So.2d 789. Further, it is apparent that the prosecuting officials, even if perjury had existed [which was not shown] were not aware of such and, therefore, the appellant would not be entitled to the relief sought. Harris v. State, Fla.App.1964, 167 So.2d 312; Smith v. State, Fla.App.1966, 191 So.2d 618; Wade v. State, Fla.App.1967, 193 So.2d 459.
For the above stated reasons, the verdict, judgment and sentence here under review is hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Durcan v. State, 383 So. 2d 248 (Fla. 3d DCA 1980)…evidence and, therefore, the appellant has made no error appear on the merits of the voluntariness of his waiver of jury trial. Swarthout v. State, 165 So. 2d 773 (Fla.3d DCA 1964); Carroll v. State, 186 So. 2d 834 (Fla.4th DCA 1966); Cash v. State, 207 So. 2d 18 (Fla.3d DCA 1968). Therefore, the order under review be and the same is hereby affirmed. Affirmed.…
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Williams v. State, 261 So. 2d 855 (Fla. 3d DCA 1972)…the record that the State was surprised by the conflicting stories that Dennis told.1 Under these circumstances, we hold that the use of Dennis’ testimony does not constitute the use of perjured testimony as described in Cash v. State, Fla.App.1968, 207 So. 2d 18. Affirmed. . The State had made a deal with Dennis, which was revealed to the jury, that in return for his testimony he would be allowed to plead guilty to manslaughter and receive an eighteen year sentence.…
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Isiah Hamilton v. State, 237 So. 2d 255 (Fla. 2d DCA 1970)…uld not conscientiously say that the trial Judge abused his discretion in denying the motion for post-conviction relief in his findings on the evidence adduced before him (State v. Sears, 1941, 148 Fla. 89, 3 So. 2d 721; Cash v. State, Fla.App.1968, 207 So. 2d 18; and Hoover v. State, Fla.App.1968, 212 So. 2d 95).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- State v. Weeks, 166 So. 2d 892 (Fla. 1964)
- Gordon v. State, 104 So. 2d 524 (Fla. 1958)
- Hall v. State, 136 Fla. 644 (Fla. 1939)
- Whitney v. State, 184 So. 2d 207 (Fla. 3d DCA 1966)
- Plymale v. State, 201 So. 2d 85 (Fla. 3d DCA 1967)
- Harris v. State, 167 So. 2d 312 (Fla. 3d DCA 1964)
- Chambers v. State, 176 So. 2d 597 (Fla. 3d DCA 1965)
- Carroll v. State, 186 So. 2d 834 (Fla. 4th DCA 1966)
- Lum Coleman v. State, 193 So. 2d 699 (Fla. 1st DCA 1967)
- Smith v. State, 191 So. 2d 618 (Fla. 4th DCA 1966)